Just weeks after the U.S. Ninth Circuit Court of Appeals banned the herbicide dicamba in June 2020, Bayer prepared an outline for the Environmental Protection Agency to reinstate its controversial weed killer, federal documents show.

Bayer had submitted an application for registration on July 3. Over the next few months, as more than 50 EPA employees worked to re-register the pesticide, the EPA and Bayer stayed in contact, communicating over multiple versions of the label, up until just hours before the new label was announced.

In fact, the EPA sought “concurrence” with some of its proposed changes from Bayer and other makers of the herbicide, including chemical companies BASF and Syngenta. The EPA also allowed Bayer to reject other changes to the label, documents show.

While there is normally some back-and-forth between the EPA and registrants of pesticides, these documents show the extent to which Bayer and other registrants influenced the re-approval of dicamba — even after a court found the EPA violated the law in a previous approval of the herbicide by showing too much deference to Bayer.

“The level of access and input here is really appalling. It’s more like the EPA is asking permission to make changes, rather than acceptance,” said Nathan Donley, Environmental Health Science Director at the Center for Biological Diversity. Donley obtained the documents in a Freedom of Information request and shared them with Investigate Midwest. 

The Center for Biological Diversity is one of several conservation and farming organizations that successfully challenged the EPA’s 2018 approval of dicamba, which led to the controversial weed killer being banned by the U.S. Ninth Circuit Court of Appeals in June 2020. The groups have filed another lawsuit, challenging the 2020 reapproval. That lawsuit is ongoing.

Bayer spokeswoman Susan Luke said in an email the company’s interactions with the EPA were “routine, professional, and consistent with all laws and regulations.” She pointed out that the EPA said it reviewed new information and made a science-based decision. 

“The feedback so far from growers about the value of the system and the implementation of the new label changes is encouraging and we look forward to having a more complete view of the season in the coming weeks,” Luke said.

Ken Labbe, an EPA spokesman, said in an emailed response that the agency and registants “are typically in communication throughout the label review process, which is usually iterative in nature.”

“Both parties work together to develop label language that meets EPA’s health and environmental standards under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), while taking into consideration registrant input regarding label wording, formatting, and presentation,” Labbe wrote. “EPA will not approve a registration that doesn’t meet statutory standards.”

Labbe said the 2020 decision was informed “by input from state regulators, grower groups, academic researchers, pesticide manufacturers, and others.”

Donley said the EPA should grant similar access like Bayer has to other groups, such as farmers who have been harmed, weed scientists and state extension experts.

[Read more: ‘Buy it or else’: Inside Monsanto and BASF’s moves to force dicamba on farmers]

The controversial weed killer has skyrocketed in use in recent years, after agribusiness giant Monsanto — now owned by Bayer — introduced new soybean and cotton plants that are genetically engineered to withstand being sprayed by dicamba beginning in 2015. In that time, the herbicide, which has a tendency to move off of where it is sprayed and harm other plants, has been blamed for millions of acres of damage to crops and natural areas.

‘Anything else you need from Bayer’ 

The conversations between Bayer and the EPA went up to the last hours before the EPA announced the new registration last year. 

Contribute to our reporting. Do you work for the EPA or Bayer and have information on the 2020 registration of dicamba? We’d love to hear from you. Please contact jhettinger@investigatemidwest.org or contact us securely at MidwestCenter@protonmail.com.

In fact, the night before the EPA was set to announce the registration, the agency was still seeking edits on the final registration. Dan Kenny, chief of the Herbicide Branch of the Registration Division, sent Bayer a final draft of terms, minus the Herbicide Resistance Management Plan, which Bayer still needed to add in, at 5:28 p.m.

About an hour and a half later, another EPA staffer inquired: “Do you have an update?” 

Thomas Marvin, head of regulatory science for North America at Bayer Crop Science, responded one minute later. 

“15 minutes, 20 tops.”

More than four hours later, at 11:19 p.m., Marvin responded with the changes.

“All files attached with changes in redline. Changes limited to: edits discussed, typos, corrections, and minor clarifications. Please let me know if there is anything else you need from Bayer,” he wrote. 

There was no response in the documents. 

The next day, just hours before the EPA announced the changes, the EPA sought “concurrence” with some of its proposed changes from Bayer, BASF and Syngenta. 

Requiring less volatility

Because of the widespread damage caused by dicamba, the label for the weed killer, which dictates how and where it may be sprayed, has been under significant scrutiny since it was approved in 2017.

Pesticide applicators have reported following all label requirements yet still having the weed killer damage other crops that are not resistant to the weed killer.

Each year, state and federal regulators have also changed the conditions under which dicamba can be sprayed in attempts to limit the damage. Yet the damage has continued.

For years, experts have said that volatility, when a liquid turns into a gas and stays in the air, is the main issue with dicamba. Damage from volatilization frequently occurs through a process called “atmospheric loading,” which is when so much dicamba is sprayed at the same time that it is unable to dissipate and persists in the air for hours or days poisoning whatever it comes into contact with. 

For years, Bayer has denied that volatility is an issue with dicamba, but in last year’s reapproval process, Bayer requested that the EPA mandate that a volatility-reducing agent is used whenever dicamba is sprayed, according to the documents, based on 19 of Bayer’s studies on volatility.

In its final decision, the EPA enforced new restrictions on the use of dicamba, including mandating the use of a volatility-reducing agent, increased buffer zones and a nation-wide cut-off date after which dicamba could not be sprayed. The EPA said the changes gave the agency “90% confidence” that the damage would be eliminated.

Even with the changes, widespread damage was also reported this year, with at least 650,000 acres of soybeans damaged in Arkansas and the Upper Midwest reporting “2021 may be the worst year yet” for dicamba damage.

Reapproval just days before presidential election

In June 2020, the U.S. Ninth Circuit Court of Appeals found that the EPA violated the law in its 2018 approval of dicamba by failing to properly consider the impacts on farmers and the environment. The court ruled the agency gave too much deference to Bayer and also was lacking necessary data to show too much harm wouldn’t be done. The ruling was in response to a challenge by conservation and farming groups. 

Earlier this year, the EPA Inspector General, an internal agency watchdog, agreed with the court’s ruling, finding that senior Trump Environmental Protection Agency officials changed career scientists’ analyses and conclusions in order to support the re-registration of the herbicide dicamba in 2018.

But just days before the 2020 presidential election, the Trump Administration reinstated dicamba in a press conference in the swing state of Georgia. Then-EPA Administrator Andrew Wheeler made the announcement with American Farm Bureau President Zippy Duvall.

Documents supporting that decision showed that the damage was worse than previously known. Documents show at least 65,000 soybean fields encompassing 4.1 million acres were damaged in 2018 alone, and that figures from Bayer and BASF, which make dicamba, underestimated dicamba damage by 25-fold. 

The Biden administration has continued to defend that decision as not political, something that George Kimbrell, legal director of the Center for Food Safety who has led the challenges of the dicamba approval, said is clearly not true.

[Read more: The Biden administration has defended some of former President Trump’s pesticide decisions]

“The approval took place three days before the presidential election in a cotton field in Georgia. It was timed and acted upon in a political way, especially with the way the election in Georgia went down,” Kimbrell said.

In the presidential election, President Joe Biden defeated then-President Donald Trump in the state by a margin of fewer than 12,000 votes. 

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Johnathan Hettinger focuses on pesticide coverage for Investigative Midwest. Growing up in central Illinois, Johnathan saw and had family members working in all aspects of agribusiness, from boots-in-the-field...

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